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Some Legal Phases 


Of the 

Proposition for 

Federal Ownership and Operation 
of the Telephone 


By 

CHARLES T. RUSSELL 
Of the New fork Bar 































































































































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Some Legal Phases 

Of the 

Proposition for Federal Ownership 
and Operation of the Telephone 

By CHARLES T. RUSSELL 
Of the New York Bar 


In addition to the economic and practical objections 
to the scheme of federal ownership and operation there 
is another side to the matter which its proponents have 
either ignored or failed to recognize. That is the 
constitutional power of the federal government to 
acquire and operate the telephone properties. 

Lawyers who have given thought and study to 
the matter say that there is a very serious question 
indeed as to the constitutional power of the federal 
government to take and operate even the interstate 
long distance telephone lines, and that they can find no 
authority whatever by virtue of which it can lawfully 
acquire or operate local or intrastate telephone systems. 

I shall not within the limits of this short article 
attempt to make any elaborate discussion of these 
constitutional questions but wish merely to point out 
the reasons as I understand them for this lack of con¬ 
stitutional power. 

The federal constitution is more than a mere series 
of legal rules; it is a guide to good government, framed 
by a body of Americans inspired by the purest and most 
patriotic motives, and probably the wisest and ablest 
deliberative body ever assembled. It was intended 

1 



as a basis for a permanent system of government and 
the principles upon which it was founded were be¬ 
lieved by its makers to be eternal and absolutely 
necessary to the future welfare of the American people. 
From those principles, aided by long experience, were 
derived its notable provisions which recognize and 
secure the rights of localities and individuals. The 
general plan for the government of the Union was to 
have a centralized power over such matters only as 
were national in their character and to leave the rest, 
including all local matters and affairs, to the respective 
states. 

Accordingly the federal constitution strictly limits 
the activities of the federal government to matters 
concerning which the Union as a whole is interested. 
It can declare and carry on war and make peace; 
create, maintain and regulate an army and navy; coin 
money; provide for the post-office service; grant patents 
and copyrights; punish piracies and offenses against 
foreign nations; make uniform rules of naturalization 
and bankruptcy; provide for the government of the 
territories, foreign possessions and the District of 
Columbia; regulate commerce with foreign nations 
and among the several states; raise money by taxes, 
duties and loans to carry on the government; establish 
courts and make such laws as are necessary and proper 
for those purposes. All of the federal government’s 
powers are set forth in detail in the constitution itself. 

When the constitution was presented for acceptance 
it was thoroughly understood by the people of the thir¬ 
teen states that all the powers not plainly granted to 
the Congress were reserved to the several states. This 
was a matter of course. The Union was a sort of 
partnership, and when a man enters into a partner¬ 
ship he retains his control over his family affairs and 

2 


private business. You do not have to put that into 
the partnership papers. Nevertheless the watchful 
critics of the constitution objected that the reservation 
to the states was not specifically made, and it was 
found necessary in order to get it adopted to promise 
that it should be immediately amended in this respect. 
Consequently at the very first Congress, held in 1789, 
an amendment was proposed and unanimously ratified 
by the states and made a part of the constitution in 
the following language: 

‘‘The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the 
people.” (Art. X.) 

Nothing could be plainer than the meaning of the 
language of this amendment. Every intelligent man 
at all familiar with constitutional history knows that 
if telephone systems had been in existence at the time 
the constitution was adopted the entire control of 
such systems within the limits of each state would 
have been reserved to that state. No one would have 
even suggested that they could be operated by the 
federal government. 

When the constitution was before the people for 
adoption, among its greatest champions were the dis¬ 
tinguished publicists Alexander Hamilton, James Madi¬ 
son and John Jay. They wrote a series of papers ad¬ 
vocating and explaining the proposed constitution, 
which, collected together, are known as the “ Federal¬ 
ist. ” In Number 45 of this collection can be found 
these words, which have been approved by the Supreme 
Court of the United States: 

“The powers delegated by the proposed consti¬ 
tution to the federal government are few and defined. 

3 


Those which are to remain in the State governments 
are numerous and indefinite. The former will be ex¬ 
ercised principally on external objects, as war, peace, 
negotiation and foreign commerce; with which last the 
power of taxation will, for the most part, be connected. 
The powers reserved to the several States will extend 
to all the objects which, in the ordinary course of affairs, 
concern the lives, liberties, and properties of the people, 
and the internal order, improvement, and prosperity of 
the State.” 

Here is a perfectly plain proposition, clearly and 
concisely stated. Each state was sovereign as to its 
internal affairs. All matters foreign to each state and 
to the Union were to be within the federal domain; 
the rest remained to the states. And lest there should 
be any doubt about it specific mention was made of 
the federal powers and nothing not thus enumerated 
was to be granted to the central government. The 
powers of government being thus divided, those of 
the Congress within its domain were to be absolute and 
exclusive and not to be impaired and those of each of 
the states within its domain were also to be absolute 
and exclusive and not to be impaired. 

Under what delegated and enumerated powers, ' 
then, do the proposers of this scheme claim that the 
federal government can expend hundreds of millions 
of dollars in the acquisition of the existing telephone 
properties or otherwise embark in the business of man¬ 
aging and operating telephone plants and systems 
which were originally established and have since been 
maintained by private enterprise under the authority 
of the state governments? The claim is asserted under 
two of the grants of power to Congress, namely, the 
power “to establish post-offices and post-roads” and 
the power “to regulate commerce * * * among the 
several states.” 


4 


Some reference has been made to the telegraph 
lines maintained by the War Department for military 
purposes, but it cannot seriously be contended that the 
military power is sufficient to enable the federal govern¬ 
ment to establish and operate a public telephone 
system. Unless, therefore, the proposal is authorized 
by and falls within the powers conferred by the post- 
office or commerce clauses, the Congress is without 
power. If the power is not found in the constitution 
the Congress cannot assume it. 

The constitution is an instrument of enumeration, 
not of definition, and it has been repeatedly held and 
is the well-settled rule that the words of the con¬ 
stitution are to be construed in their ordinary and 
natural sense and to mean only what they say. The 
meaning of the words “post-offices” and “post-roads” 
was and is well understood by everyone. They mean 
the same now as they did in 1787. This power has 
been construed since the foundation of the government 
to authorize merely the maintenance of offices where 
written or printed matter in the shape of letters, 
newspapers or other documents, or parcels, may be 
received to be forwarded or distributed; the carriage 
of such mail matter; the fixing of charges for such 
carriage; the designation of routes over which it shall 
be carried, and the provision of measures necessary to 
insure its safe and speedy transit and delivery. The 
words most broadly construed mean nothing more than 
this. They do not confer upon the Congress power 
and control over all means and methods of communi¬ 
cation. Telephone operation is entirely unrelated 
to any of the functions of the post-office and is wholly 
foreign to the collection, carriage and distribution of 
the mails. Telephone service is not in any sense a 
growth or development of the post-office service. 

5 


Equally absurd is it to say that the words “ post- 
roads’’ can be construed to mean telephone routes. 
These roads belong to the states, cities, corporations 
or individuals and not to the United States, “and are 
declared post-roads only to prevent the carriers from 
being interfered with, and the mails from being delayed 
in their transportation, and the postal service from 
frauds. The government has no other control over 
them. ,, (96 U. S. 17.) They include waters, canals 
and plank roads while the mail is being carried thereon 
and all letter carrier routes in towns or cities, and also 
railroads. A post-road is merely a route on which 
mail is carried. 

Some people may ignorantly say that the Congress 
has made telegraph routes into post-roads. But this 
is not so. The misapprehension when it exists 
arises from the fact that in 1866, in order to aid and 
encourage the development of the telegraph systems 
the Congress passed the so-called Post Roads Act 
(14 Stat. 221) which provided in substance that tele¬ 
graph companies might with government consent con¬ 
struct and operate telegraph lines upon the military 
and post-roads of the United States, provided they 
accepted the condition of giving preference over their 
lines to government business and gave the government 
an option to purchase any lines so constructed. The 
companies had of course to get the additional consent 
of the local authorities. This act when accepted gave 
the telegraph companies an opportunity to use all 
post-roads but did not convert the telegraph lines into 
post-roads. Moreover the law very properly recog¬ 
nizes and treats the telegraph and telephone as distinct 
and essentially different institutions, and the United 
States Supreme Court has directly held (174 U. S. 761) 
that a telephone is not a telegraph and that the pro- 

6 


visions of the Act of 1866 did not extend to nor include 
telephone companies. That statute is therefore of no 
importance whatever in the consideration of the effect 
upon telephone systems of the power in the Congress 
to legislate concerning post-offices and post-roads. 

The proponents of the federal ownership project 
have attempted to coin a new word. They speak of 
the “postalization” of the telephone systems. There 
is, of course, no warrant for such a term in this country 
and the thought of it must have grown out of the fact 
that Great Britain and some other countries which have 
undertaken government ownership of telephone lines 
have endeavored, as a pure matter of convenience in 
administration, to operate the same in connection with 
their post-office departments. Those countries, how¬ 
ever, are units having centralized governments without 
constitutional limitations upon their power and what 
they may undertake to do is no argument in favor of 
constitutional power here. This country is not a unit 
but a union of states with a written constitution strictly 
limiting the authority of the central government. That 
the telephone is not a true post-office function is, fur¬ 
thermore, well recognized by those countries where the 
telephone systems are governmentally owned and op¬ 
erated. In Sweden the telephone administration has 
no relation whatever to the Post-Office Department, 
and the telephone systems are separately administered 
in Italy, Norway, Denmark and Switzerland. In some 
countries the government telephones are administered 
under a Department of Posts, Telegraphs and Tele¬ 
phones; some under a Ministry of Public Works, etc., 
etc., but there is a clear distinction made between 
telephone operation and the ordinary post-office func¬ 
tion of mail carrying and distribution. 

In this connection it is of interest to quote from a 

7 


recent statement made by Major O’Meara, former 
Engineer-in-Chief of the British Post-Office, where he 
says: 

“I have had the advantage during the past eighteen 
months of having visited many of the European coun¬ 
tries and of having met many officers of the Postal and 
Telegraph services in these countries. I have found 
that in every country I have visited there is a consensus 
of opinion that today the Postal Department should 
be administered separately from the Telegraph and 
Telephone Department, and in those countries in which 
the Post, Telegraphs and Telephones are combined 
under one administration in theory, I have found that 
at headquarters the administration of the Posts is 
separated in practice from that of the Telegraphs and 
Telephones, and that this separation extends in many 
cases to the Provincial Administrations. As you are 
aware, two Royal Commissions have recently investi¬ 
gated the organization of posts, telegraphs and tele¬ 
phones in Italy where at the present time the tele¬ 
phones are under an administration separate from that 
of the posts and telegraphs. It has been strongly 
urged by this Royal Commission that the telegraphs 
should be separated from the posts and placed with the 
telephones, and that in future the Postal Department 
should constitute an administration separate from that 
of the telegraphs and telephones.” 

The desire, if we unfortunately have it, to do some¬ 
thing in mere imitation of Great Britain or any other 
foreign country, cannot possibly in this matter, as I 
shall endeavor to demonstrate in discussing the com¬ 
merce clause, carry us further than state ownership 
and operation of the telephone. The post-office and 
post-roads clause obviously confers no authority upon 
the federal government to own and operate a public 
telephone system, and if any power whatever for the 
purpose can be found in the constitution it must be 
under the commerce clause. 


8 


This commerce clause has been the subject of more 
discussion and resulted in more litigation than any 
other clause in the constitution. Never before, how¬ 
ever, has it been seriously claimed to authorize the 
Congress to enact legislation under which the federal 
government might maintain and carry on a public 
utility business of an inherently local or intrastate 
character. The government has established and op¬ 
erated public utilities in its territories and foreign pos¬ 
sessions and may acquire or construct certain inter¬ 
state instrumentalities such as railroads and bridges to 
serve as military or post-roads, but in cases where it 
has exercised such power no question of the invasion 
of state rights has been raised or involved. 

In considering this clause of the constitution, the 
first question which presents itself is whether or not 
telephoning is “commerce” at all within the meaning 
of the clause. It is quite apparent that it is not. Im¬ 
portation into one state from another is the indispens¬ 
able element, the test, of interstate commerce. Unlike 
the telegraph company the telephone company does not 
transmit nor deliver messages, either written or oral. 
It does not transport or carry goods, passengers or in¬ 
formation or anything else whatever. Its sole busi¬ 
ness is to furnish and maintain electrical conductors 
and instrumentalities in such a manner that its patrons 
may converse with each other. 

Railroad transportation may be called commerce; 
it is part of the very movement of commerce. Tele¬ 
graphing, that is, the transmission and delivery of 
written messages, may also, though improperly, be 
said to be commerce. But telephoning is nothing but 
electrically aided conversation; private conversation. 
It is no more a part of commerce than is the talk over 
a dinner table or other private conversation. While it 

9 


may be used in connection with commercial trans¬ 
actions, it is as largely used for social and private pur¬ 
poses totally unrelated to trade or commerce. What 
proportion of the use is in connection with commercial 
transactions no man can say nor is it possible of ascer¬ 
tainment. 

Telephone companies have, it is true, been classed 
with “common carriers ,, as to their duty to furnish 
service to all at reasonable rates without discrimination 
and by the amendment of 1910 to the Interstate Com¬ 
merce Act the Congress has attempted to make tele¬ 
phone companies subject to that statute, but that tele¬ 
phoning is “commerce” within the meaning of the 
federal constitution is extremely doubtful and certainly 
has never been established by any decision of the 
Supreme Court nor, for that matter, by any well con¬ 
sidered decision of any other court. 

Assuming, however, that telephoning is commerce 
and that telephone lines and appurtenances are in¬ 
struments of commerce, what then is the power of the 
Congress as to their acquisition and operation? The 
telephone companies are the creatures of the states, and 
they are primarily local in their nature, management 
and operation. They are even more intimately local 
in their nature than street car and gas and electric 
light corporations. In their origin they were confined 
entirely to local service. The interstate service fur¬ 
nished by them is only incidental to and wholly depend¬ 
ent upon their local service, without which it could 
be neither established, maintained nor supported. In 
the state of New York of all the telephone use of the 
lines of the New York Telephone Company over 96 
per cent, is purely local, that is, entirely between 
points within the state, and less than 4 per cent, is 
interstate. This is upon a revenue basis; if a traffic 

10 


basis (i. e., number of calls) were used the percentage 
of interstate would be almost negligible, not more than 
a small fraction of one per cent. These percentages of 
local and interstate use are no doubt approximately 
the same in the other states. 

Not only is the traffic almost entirely local but in 
the construction and maintenance of the various tele¬ 
phone systems throughout the Union, enormous use 
has been made of state and municipal roads and high¬ 
ways and of local facilities of many kinds. The ad¬ 
ministration of these systems is and has been nec¬ 
essarily subject to state and municipal control and 
supervision for nearly every conceivable purpose. The 
states have incorporated and now control and tax 
every telephone company in the United States. 

In the State of New York during the year 1913 the 
New York Telephone Company paid taxes to the 
amount of $2,238,341.00, and it is estimated that 
during that year the total taxes paid to the several 
states of the Union by telephone companies amounted 
to the tremendous sum of twenty millions of dollars. 
Should the telephone properties become federal agen¬ 
cies they will be exempt from taxation and the states 
will be deprived of this revenue and of the control to 
which they are rightfully entitled. Other results of 
federal ownership would be that the police power of 
the states, cities, towns and villages over the use of 
their streets and highways for telephone purposes 
would be hampered if not destroyed and they would 
consequently be unable to supervise, regulate or con¬ 
trol the construction or removal of telephone poles or 
other structures no matter how unsightly or incon¬ 
venient they might be; they would be unable to fix 
rates, regulate the service or require extensions or 
additions and the salutary power of local supervision 

11 


would cease and be replaced by a supervision by federal 
officials totally irresponsible to the people of the com¬ 
munity affected by their acts. It is very apparent 
therefore that to deprive the states of their control, 
supervision and taxation of the telephone systems 
within their borders would be the plainest and most 
indisputable invasion of their reserved rights. 

Local commerce, that is, commerce which is begun, 
carried on and completed within the borders of a state, 
is, as said before, exclusively within the control of the 
respective states and beyond the control of the Con¬ 
gress under the commerce clause. This principle is 
just as much a part of the federal system as though it 
had been stated in express terms in the constitution. 
It has been asserted and sustained over and over again 
in the decisions of the Supreme Court. So that even 
if telephoning could be claimed to be commerce still 
nearly the whole of such commerce is clearly local and 
beyond the control of the Congress. 

In the Passenger Cases (7 How. 400) the Supreme 
Court said: 

“All commercial action within the limits of a State, 
and which does not extend to any other State or foreign 
country, is exclusively under State regulation. Con¬ 
gress have no more power to control this than a State has 
to regulate commerce ‘with foreign nations and among 
the several States/ ” 

The rule is similarly stated in many cases all through 
the reports of the Supreme Court, making it clear that 
the constitution guarantees the continued existence of 
the power of the state governments no less than it 
guarantees the power of the federal government. 

In furnishing the local or intrastate telephone serv¬ 
ice no part of the interstate plant or equipment is 
used. The interstate service is in all respects wholly 

12 


separable and distinct from the local service. Neither 
the local service nor the furnishing thereof obstructs, 
interferes with or affects the interstate service or the 
rates charged therefor. 

It should be remembered that telephone service is 
utterly unlike any other public utility service. In the 
case of railroads the movement of interstate and local 
traffic largely takes place at the same time on the same 
rails, by means of the same trains and cars and it is 
quite impracticable to make a separation between the 
interstate and intrastate business in the case either of 
freight or passengers. In telegraphy the lines run 
only from one community to another and the company 
operating the lines receives from its patrons written 
messages which it takes and by means of its own em¬ 
ployees transmits and delivers to the addressees. On 
the other hand, as said before, the business of the tele¬ 
phone company is solely to furnish instrumentalities 
whereby its patrons may converse with each other, its 
plant is stationary and it neither transports nor de¬ 
livers anything. There are, of course, many other 
points of dissimilarity between the telephone and other 
public services. The telephone lines form a network 
for oral communication within each community and 
this is by far the largest and most important of its 
functions. There are at least twenty-five thousand 
local telephone companies and rural systems now 
operating in the United States, representing an in¬ 
vestment of upwards of a billion dollars. The lines 
of these companies and rural systems connecting com¬ 
munity with community and running across state 
borders are but incidental to the local lines and business. 

The mere fact that the telephone companies have 
some interstate business does not make the rest of it 
interstate or subject to federal control. A corporation 

13 


which engages partly in interstate commerce does not 
thereby subject the wdiole of its business and property 
to regulation by the Congress. This is well stated by 
Chief Justice White in the Employers’ Liability Cases 
(207 U. S. 463, 502) as follows: 

“It remains only to consider the contention which 
we have previously quoted, that the act is constitutional, 
although it embraces subjects not within the power of 
Congress to regulate commerce, because one who en¬ 
gages in interstate commerce thereby submits all his 
business concerns to the regulating power of Congress. 
To state the proposition is to refute it. It assumes 
that because one engages in interstate commerce he 
thereby endows Congress with power not delegated to 
it by the Constitution, in other words, with the right 
to legislate concerning matters of purely state concern. 
It rests upon the conception that the Constitution 
destroyed that freedom of commerce which it was its 
purpose to preserve, since it treats the right to engage 
in interstate commerce as a privilege which cannot be 
availed of except upon such conditions as Congress 
may prescribe, even although the conditions would be 
otherwise beyond the power of Congress. It is appar¬ 
ent that if the contention were well founded it would 
extend the power of Congress to every conceivable 
subject, however inherently local, would obliterate all 
the limitations of power imposed by the Constitution, 
and would destroy the authority of the States as to all 
conceivable matters which from the beginning have 
been, and must continue to be, under their control so 
long as the Constitution endures.” 

In connection with the regulation of interstate 
commerce the Congress can investigate and require 
information concerning the local or intrastate part of 
the business of the corporation, but it cannot in any 
way regulate or control that business where interstate 
commerce is not substantially affected. The following 
quotation from the opinion of one of the federal judges 

14 


states the general rule which has been followed by the 
courts: 

“While the interstate clause of the federal con¬ 
stitution should always be reasonably construed so as 
to promote the beneficent purposes for which it was 
ordained, it should never be employed as an instru¬ 
mentality to take from a state its legitimate control 
over local business.” 

The interstate telephone service is merely auxiliary 
to the local or intrastate service and the Congress can 
have no authority in the regulation of a mere auxiliary 
to usurp the power of the states over the whole extensive 
local system. In other words the Congress has no 
exclusive control over the whole telephone system and 
though, if telephone service be commerce, it may have 
power to regulate and fix rates affecting the interstate 
part, it cannot as an incident thereto assume the 
regulation of the enormous local telephone service of 
the Union. Still less, of course, has the Congress the 
power to take over and own and operate all of the 
local or intrastate systems merely as an incident to the 
regulation of the comparatively negligible amount of 
interstate service. 

It is also gravely doubted whether the Congress 
under the guise of regulation can acquire and operate 
the small auxiliary interstate service even if tele¬ 
phoning be commerce. If under the guise of regulation 
it is authorized to acquire and own at all can it be 
permitted to separate and take that which is nothing 
but an incident to the state systems and only a frac¬ 
tional part of the whole? 

The right of the Congress to exclusively regulate 
interstate commerce is undoubted. Its right to regu¬ 
late the instrumentalities of such commerce so far as 
to prevent the states from obstructing the same may 

15 


be conceded. Its right to go beyond this is denied and 
cannot be established unless the country is ready to 
radically depart from a system of government founded 
on the common sense principle that the individual can 
best attend to his own family and business affairs and 
needs; and that the states and political subdivisions 
thereof can best manage their own concerns. The 
founders of our existing political system believed in the 
efficiency of home rule; they recognized the danger of 
imperialism; of a great concentration of power in a 
central body or individual; of armies of office holders 
appointed and controlled by one power and the folly of 
attempting to make uniform laws and regulations for 
widely differing states and localities. They wisely 
endeavored to guard against any impairment of the 
rights and powers of the several states of the Union 
lest future generations might not be sufficiently pro¬ 
tected against imperialism or lest the desire for ad¬ 
ditional offices and patronage and the expenditure of 
public moneys might later on induce Americans to 
attempt to needlessly and dangerously enlarge the 
powers of the central government. 

If the federal government is permitted to acquire 
and carry on the great business of telephony through¬ 
out the entire Union, with all that that implies, the 
construction, maintenance and operation of buildings, 
offices, switchboards, subways, conduits, ducts, poles, 
cables, wires, apparatus and equipment and the em¬ 
ployment of tens of thousands of people necessary to 
conduct such an immense enterprise, the process of 
state destruction will inevitably proceed until sooner 
or later the states and cities will lose every vestige of 
their local control over railroads and other public 
utilities. And there will be no end to the length to 
which federal encroachment upon the states will be 

16 


pushed. This question is one which involves the very 
existence of the present federal system of government 
and that system is the only one under which this im¬ 
mense nation can exist and yet be free in the future as 
it has been in the past. 

1 he advocates of centralization are pleased to say 
that modern inventions have so approximated once 
distant communities that central control is easier than 
it was a century ago; but they overlook the fact that 
these very inventions and others have so complicated 
the affairs of life as to make knowledge of local con¬ 
ditions many times more important than it was then. 
New York is not as distant from Georgia in point of 
time as it was in 1814, but the difference between the 
life and needs of a resident of New York City and a 
farmer of Georgia is very much greater than it was 
then. 

The provision of the constitution to the effect that 
all the powers not actually enumerated as conferred 
upon the federal government were reserved to the 
states or to the people was taken as the expression of 
the desire and capacity of Americans for self govern¬ 
ment. Self government and local government and 
Home Rule are synonymous terms. If the telephone 
and telegraph systems are made departments of the 
federal administration there is no logical reason why 
the steam railroads, street railroads, gas and electric 
plants, grain elevators, coal and iron mines and the 
great manufacturing and other business enterprises 
should not also be acquired. This then is the real 
proposition before us. Shall the constitution be mis¬ 
interpreted so as to make way not merely for the federal 
ownership and operation of the telephone systems but 
for the greater part of socialism and consequent paraly¬ 
sis of individual initiative? Shall we pass on from 

17 


political government to the economic regulation of the 
affairs of the people by a central administration? This 
question and the true answer to it can well be made 
in the following language of President Woodrow Wilson 
in a lecture on The States and the Federal Government 
delivered by him at Columbia University in 1907: 

“What, reading our Constitution in its true spirit, 
neither sticking in its letter nor yet forcing it arbitrarily 
to mean what we wish it to mean, shall be the answer 
of our generation, pressed upon by gigantic economic 
problems the solution of which may involve not only 
the prosperity but also the very integrity of the nation, 
to the old question of the distribution of powers be¬ 
tween Congress and the States? For us, as for previous 
generations, it is a deeply critical question. The very 
stuff of all our political principles, of all our political 
experience, is involved in it. In this all too indistinctly 
marked field of right choice our statesmanship shall 
achieve new triumphs or come to calamitous ship¬ 
wreck. * * * 

The United States are not a single, homogeneous 
community. In spite of a certain superficial sameness 
which seems to impart to Americans a common type 
and point of view, they still contain communities at 
almost every stage of development, illustrating in their 
social and economic structure almost every modern 
variety of interest and prejudice, following occupations 
of every kind, in climates of every sort that the temper¬ 
ate zone affords. This variety of fact and condition, 
these substantial economic and social contrasts, do not 
in all cases follow state lines. They are often con¬ 
trasts between region and region rather than between 
State and State. But they are none the less real, and are 
in many instances permanent and ineradicable. * * * 

We are too apt to think that our American political 
system is distinguished by its central structure, by its 
President and Congress and courts, which the Consti¬ 
tution of the Union set up. As a matter of fact, it 
is distinguished by its local structure, by the extreme 
vitality of its parts. It would be an impossibility with- 

18 


out its division of powers. From the first America 
has been a nation in the making. It has come to ma¬ 
turity by the stimulation of no central force of guidance, 
but by an abounding self-helping, self-sufficing energy 
in its parts, which severally brought themselves into 
existence and added themselves to the Union, pleasing 
first of all themselves in the framing of their laws and 
constitutions, not asking leave to exist and constitute 
themselves, but existing first and asking leave after¬ 
wards, self-originated, self-constituted, self-confident, 
self-sustaining, veritable communities, demanding only 
recognition. Communities develop, not by external 
but by internal forces. Else they do not live at all. 
Our commonwealths have not come into existence by 
invitation, like plants in a tended garden; they have 
sprung up of themselves, irrepressible, a sturdy, spon¬ 
taneous product of the nature of men nurtured in a 
free air. 

It is this spontaneity and variety, this independent 
and irrepressible life of its communities, that has given 
our system its extraordinary elasticity, which has pre¬ 
served it from the paralysis which has sooner or later 
fallen upon every people who have looked to their 
central government to patronize and nurture them. It 
is this, also, which has made our political system so 
admirable an instrumentality of vital constitutional 
understandings. Throughout these lectures I have de¬ 
scribed constitutional government as that which is 
maintained upon the basis of an intimate understanding 
between those who conduct government and those who 
obey it. Nowhere has it been possible to maintain 
such understandings more successfully or with a nicer 
adjustment to every variety of circumstance than in 
the United States. The distribution of the chief powers 
of government among the States is the localization and 
specialization of constitutional understandings; and this 
elastic adaptation of constitutional processes to the vari¬ 
ous and changing conditions of a new country and a vast 
area has been the real cause of our political success. 

The division of powers between the States and 
the federal government effected by our federal consti- 

19 


tution was the normal and natural division for this 
purpose. Under it the States possess all the ordinary 
legal choices that shape a people’s life. Theirs is the 
whole of the ordinary field of law; the regulation of 
domestic relations and of the relations between em¬ 
ployer and employe, the determination of property 
rights and of the validity and enforcement of contracts, 
the definition of crimes and their punishment, the def¬ 
inition of the many and subtle rights and obligations 
which lie outside the fields of property and contract, 
the establishment of the laws of incorporation and of the 
rules governing the conduct of every kind of business. 
The presumption insisted upon by the courts in every 
argument with regard to the powers of the federal 
government is that it has no power not explicitly 
granted it by the federal Constitution or reasonably 
to be inferred as the natural or necessary accompani¬ 
ment of the powers there indisputably conveyed to 
it; but the presumption with regard to the powers of 
the States they have also held to be of exactly the op¬ 
posite kind. It is that the States of course possess every 
power that government has ever anywhere exercised, 
except only those powers which their own constitu¬ 
tions or the Constitution of the United States explicitly 
or by plain inference withhold. They are the ordinary 
governments of the country; the federal government 
is its instrument only for particular purposes.” 

There is more in this lecture of similar strong and 
convincing argument, which considering the present 
exalted position of the lecturer and the quality of his 
learning on the subject is entitled to the greatest con¬ 
sideration and weight, but want of space forbids 
further quotation. His views as there expressed may 
be summarized thus: The greatness and development 
of the United States are due to the vital energy of the 
people and that of their several State governments; it 
is in the local life and governments that the true 
strength and greatness of the American people is to be 

20 


found; the States are politically separated, not arti¬ 
ficially but naturally, and the very life of free America 
demands that their separate life be preserved. When 
that is destroyed or degraded the federal Union of 
States will be changed into an empire of subject 
provinces and the pride and glory of American tradi¬ 
tions once represented in the American Constitution 
will have perished from the earth. 

February, 1914. 


21 


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